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Developer closes on car park property

Lawsuit will return to court next month

POSTED: September 23, 2009 4:00 a.m.

Less than 24 hours before a judge was to rule on a lawsuit aimed at stopping a proposed motorsports park in western Dawson County, the developer closed on the property.

  

Jeremy Porter must wait about two weeks before he can begin obtaining the necessary permits to begin construction.

  

The time will give attorneys on both sides an opportunity to resubmit motions and clarify the lawsuit.

  

West and Helen Hamryka, who live across from the property on Duck Thurmond Road, filed the suit earlier this year against Atlanta Motrosports Park, the City of Dawsonville and EHK (Ernie Elliott).

  

Friday, the defendants named in the lawsuit asked the court to dismiss the civil case.

  

Attorneys for the Hamrykas contend the city violated zoning procedure when approving Porter’s rezoning request for the 152 acres in April.

  

The suit also maintains the defendants are responsible “for the unlawful interference of [the Hamrykas’] right to enjoy the possession of their property and for the disruption of their business.”

  

The Hamrykas operate a horse farm on the site.

  

Superior Court Judge Kathlene Gosselin said she considered tossing out the latter claim since there was no way to know “reasonably certainty” that a nuisance would exist until the park was built. 

  

“It hasn’t happened yet,” she said, adding there would be opportunities throughout the permitting process to claim and prove nuisance. “I am leaning toward granting the motion to dismiss that.”

  

Instead, Gosselin held off and gave each side two more weeks to prepare briefs and rewrite motions that better suit the case at hand.

  

Much of the discussions Friday involved the amount of time between when the lawsuit was filed in Superior Court and when the defendants were formally served.

  

The defendants were not served for more than 40 days, according to statements in court. 

  

In the motion to dismiss, filed in July, attorneys for Porter say the plaintiff’s “failure to diligently serve the defendants with any complaint during the 30-day limitation period for appeals on zoning decisions” should dismiss the counts.

  

Gosselin told attorneys from both sides to determine whether the issue was an appeal.

  

“This is not an appeal,” said Dawsonville attorney Dana Miles. “They never filed an appeal to the zoning. They also never filed a notice of appeal, which is a separate document from the appeal itself.”

  

Attorneys for the Hamrykas agreed.

  

“If this case is dismissed, we could refile it tomorrow, and surely we would,” said attorney Richard Wingate. 

  

Thomas Calkins, attorney for Elliott, who sold the property on Duck Thurmond Road to Porter, said his client “will have no involvement in or control over any construction or development” and “is not a proper party in the lawsuit.”

  

“Without damage, there can be no cause of action,” Calkins said.

  

Porter has called the lawsuit, which he said is an attempt to deter investors, frivolous from the beginning. 

  

But neither investors nor those involved with development have been swayed, according to Porter. 

  

He announced last week Bryan Moss, former chairman of Gulfstream Aerospace, was added to the park’s board of advisors.

  

He currently also sits on the board for the Skip Barber Racing School and has a deep understanding of motorsports.

  

“Bryan adds dimension to our team with his vast success in corporate America, his ability to build a world-class brand, and his excellence in serving his clients,” Porter said.

  

“We plan to tap into that intellectual capital for our business and members to help prevent pitfalls and accelerate the successes.”

  

Billed as unique and eco-friendly, the track was designed by Formula One engineers at Tilke Architects. It was shortened to less than 2 miles and tweaked to meet city-imposed guidelines.

  

“Some of the greatest minds in motorsports say they believe this track will become truly legendary,” Porter said. “This is going to be something that’s going to be like no other motorsports park in the world.”

  

Billed as a motorsports country club, plans call for nearly two miles of a high performance road course for two- and four-wheel vehicles, a members-only lounge, 10,000-square-foot clubhouse, pool and hiking trails.

  

One condition of the zoning is to have the development running within three years, which Porter said still is the plan.

 

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